By K. Hollyn Hollman, BJC General Counsel
Exaggerated claims are perhaps to be expected when religious liberty collides with other significant governmental interests. In the ongoing debate about religious institutions’ objections to the contraception coverage mandate in the Affordable Care Act, much of the rhetoric has been harsh and misleading.
Defining exemptions to laws that burden religion can be complex, especially when such exemptions affect the rights of others, and the new health care law presents some difficult issues. But as a recent case from Texas demonstrates, church-state matters often inflame passions even in relatively easy cases.
Last May, Americans United for Separation of Church and State brought a lawsuit to prevent a public high school in Texas from sponsoring religious exercises at graduation ceremonies and during the school day. Despite longstanding legal precedents distinguishing between constitutionally protected student speech and unconstitutional school-sponsored religious exercises, litigation was required to bring these troubling practices to an end. The suit was initiated on behalf of a brave student and his family who simply wanted the school to provide an educational environment that is neutral toward religion as required by the First Amendment.
In the context of that lawsuit, incredibly harsh statements denigrating the separation of church and state were made. In what was a typical case of enforcing the First Amendment in public schools, partisans found an opportunity for political gain during this presidential primary season. On the BJC’s Blog from the Capital (www.BJConline.org/blog), Don Byrd put it this way:
You may remember recent reference to Fred Biery, a U.S. District Court Judge in Texas who has been vilified by presidential candidate Newt Gingrich over his rulings in a graduation prayer dispute. His method of enforcing church-state separation so offended Gingrich that he used Biery as Exhibit A in his plan to have judges arrested and brought before Congress to explain themselves for such rulings.
While the rest of us were distracted by contraception talk, Judge Biery was approving a settlement in the case that caused Gingrich such consternation. The Judge’s order in Schultz v. Medina [Valley Independent School District] authorizes an agreement between the parties that will allow a student speaker at graduation to speak their mind without school officials’ interference, so long as a disclaimer distances the views expressed by the student from those of the school, and so long as school officials on stage do not participate in any prayer the student may decide to lead.
In a court order accompanying the settlement agreement between the plaintiffs and the School District, the judge made clear that the case was not about “the right to pray,” which the judge noted is available to all. Instead, he explained, it was about whether a governmental entity could use its power to promote the majority’s views on religion over those of a minority. He observed that the settlement achieved a reasonable balance between competing First Amendment rights for student speakers and freedom from government endorsement of a particular religious belief.
Judge Biery—known for his colorful language and heavily footnoted references to history, literature and religion—attached to his order an Appendix captioned “An Ironic Venue for Separation of Church and State Litigation,” which is worth reading, and a “Personal Statement” that should not be missed. The Personal Statement reads:
During the course of this litigation, many have played a part:
To the United States Marshal Service and local police who have provided heightened security: Thank you.
To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.
To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.
To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.
To the lawyers who have advocated professionally and respectfully for their clients’ respective positions: Bless you.
A friend who directs another denominational organization recently sent me an email that began: “I pray all is well with you in these lively times.” I loved that. These are indeed lively times, and religious liberty has always been a spirited topic in our country. Judge Biery’s comments remind us that along with our obligation to defend religious liberty for all, we should all work to temper any rhetoric that obscures the real issues.
